United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
Pavone sued the Law Offices of Anthony Mancini, Ltd.,
alleging that it violated section 2722 of the Driver's
Privacy Protection Act (DPPA), 18 U.S.C. § 2722(a).
Following discovery, Mancini moved for summary judgment. The
Court largely denied the motion but narrowed Pavone's
suit to the claim that Mancini obtained and used certain
personal information from Pavone's driver's license,
which is a motor vehicle record under the DPPA.
argued in his summary judgment motion that Pavone had failed
to show that he has standing to sue as required by Article
III of the United States Constitution. The Court ordered
further briefing on this point and now concludes that Mancini
is not entitled to summary judgment on the issue of standing.
But because Mancini's factual challenge to standing
cannot be determined with finality on the present record, an
evidentiary hearing will be required.
DPPA provides that "[a] person who knowingly obtains,
discloses or uses personal information, from a motor vehicle
record, for a purpose not permitted under [the statute] shall
be liable to the individual to whom the information pertains
. . ." 18 U.S.C. § 2724(a), (b). The statute
permits recovery of actual damages or liquidated damages of
$2, 500, whichever is greater. Id. §
was in an automobile accident. He alleges that Mancini
violated the DPPA by obtaining a crash report about the
accident that contained Pavone's driver's license
information and then using that information to send him a
letter (which included the report itself) soliciting him to
hire Mancini to file a lawsuit regarding the accident.
Pavone v. Law Ofcs. of Anthony Mancini, Ltd., No. 15
C 1538, 2016 WL 4678311, at *1 (N.D. Ill. Sept. 7, 2016). In
denying Mancini's motion for summary judgment, the Court
concluded that Pavone provided evidence sufficient for a
reasonable jury to find that Mancini knowingly obtained and
used Pavone's driver's license number for a purpose
not permitted by the DPPA. Id. at *6.
contends that Pavone's claim does not involve the sort of
injury that confers standing to sue under Article III. To
have standing, a plaintiff "must have (1) suffered an
injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision."
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016),
as revised (May 24, 2016) (internal citations omitted).
argues Pavone lacks standing because his alleged injuries are
only procedural and not sufficiently concrete. In
Spokeo, the Supreme Court concluded that to have
standing under Article III, a plaintiff must show that he has
suffered an invasion of a legally protected interest that is
"concrete and particularized" and "actual or
imminent, not conjectural or hypothetical." Id.
at 1548. The Court explained that both tangible and
intangible harms can satisfy the concreteness requirement;
though tangible injuries are "perhaps easier to
recognize" as concrete injuries, "intangible
injuries can nevertheless be concrete." Id. at
1549-50. The analysis of injury in fact should draw on
"both history and the judgment of Congress . . . ."
Id. at 1549. History plays a role because "it
is instructive to consider whether an alleged intangible harm
has a close relationship to a harm that has traditionally
been regarded as providing a basis for a lawsuit in English
or American courts." Id. Congress's
judgment plays a role because "Congress is well
positioned to identify intangible harms that meet minimum
Article III requirements" and "has the power to
define injuries and articulate chains of causation that will
give rise to a case or controversy where none existed
before." Id. (internal quotation marks and
asserts the type of injury that Congress sought to prevent
and redress in enacting the DPPA-invasion of personal
privacy. The purpose of the DPPA is to protect a person's
"right to privacy in motor vehicle records."
Maracich v. Spears, 133 S.Ct. 2191, 2193 (2013);
see also Senne v. Vill. of Palatine, 695 F.3d 597,
607 (7th Cir. 2012) ("The intent of this legislation is
simple-to protect the personal privacy and safety of all
American licensed drivers.") (quoting 140 Cong. Rec.
H2526 (daily ed. Apr. 20, 1994)). Courts have traditionally
recognized that a violation of the right to privacy results
in the sort of harm that provides an appropriate basis for a
lawsuit. As one court noted in a DPPA case, "the type of
harm at issue-the viewing of private information without
lawful authority-has a close relationship to invasion of the
right to privacy, a harm that has long provided a basis for
tort actions in the English and American courts."
Potocnik v. Carlson, No. 13-CV-2093, 2016 WL
3919950, at *2 (D. Minn. July 15, 2016). See also, e.g.,
Engebretson v. Aitkin Cty., No. CV 14-1435, 2016 WL
5400363, at *4 (D. Minn. Sept. 26, 2016). Pavone testified
that the realization that Mancini had obtained and used
private and personal information about him caused him
emotional distress. See Pl.'s Resp. to
Defs.' Stat. of Undisputed Material Facts ¶ 26.
Court concludes that an injury suffered by an individual that
results from obtaining and using his private information in
violation of the DPPA-the type of injury that Pavone claims
to have suffered-is sufficiently concrete and particularized
to confer Article III standing. This is also the type of
injury that can be redressed by a favorable judicial decision
in Pavone's case, namely by an award of damages. Because
Pavone has provided evidence sufficient to permit a finding
that Mancini's violation of the DPPA caused him this sort
of injury, Mancini is not entitled to summary judgment on
however, is not the end of the story as far as Pavone's
standing is concerned. Standing ultimately requires a
litigant to "prove that he has suffered a
concrete and particularized injury that is fairly traceable
to the challenged conduct, and is likely to be redressed by a
favorable judicial decision." Remijas v. Neiman
Marcus Grp., LLC, 794 F.3d 688, 691-92 (7th Cir. 2015)
(emphasis added) (citing Hollingsworth v. Perry, 133
S.Ct. 2652, 2661 (2013)). Mancini has asserted not a facial
challenge to Pavone's standing, but rather a factual
challenge, which requires the Court to assess, and ultimately
determine, whether Pavone has demonstrated standing by a
preponderance of the evidence. See Apex Dig., Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir.
2009) (explaining the nature of a factual challenge to
standing); Kathrein v. City of Evanston, 636 F.3d
906, 914 (7th Cir. 2011) (preponderance of evidence
standard). In some situations, this may require an
evidentiary hearing, see Apex Dig., 572 F.3d at
444-45, and this is such a case. In the Court's previous
ruling, it narrowed Pavone's DPPA claim to the obtaining
and use of his driver's license number, because he failed
to offer any evidence that Mancini knew the other personal
information Pavone cited (address, date of birth, etc.) came
from a motor vehicle record. See Pavone, 2016 WL
4678311, at *6. The evidence offered on the question of
standing-specifically, Pavone's deposition-was elicited
before the Court narrowed Pavone's claim, and thus
unsurprisingly the questions posed to Pavone by Mancini's
lawyer lumped together all of the information that
Pavone's case was based upon at the time. In other words,
Pavone's contentions regarding the injury he suffered do
not parse out the obtaining and use of his driver's
license number, as distinguished from the other information
he cited. His testimony is sufficient to get him over the
summary judgment hurdle, but the Court will have to assess
the matter at an evidentiary hearing prior to trial in order
to make a final determination of the standing issue.
reasons stated above, the Court concludes that defendant is
not entitled to summary judgment on the issue of
plaintiff's standing to sue but will set the matter for
an evidentiary hearing so that the Court can hear and weigh
the evidence regarding standing and make a final
determination. The case is set for a status hearing ...